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The rules and regulations dictating the powers within a state and also the

rights of its people, this to me will be my own interpretation and hence definition of

a constitution. Besides this, it was once stated by Thomas Paine that:

A constitution is not an act of a government, but of a people constituting a

government, and a government without a constitution is power without

right A constitution is a thing antecedent to a government; and a

government is only the creature of a constitution. [1792, Pt II, p 93]1

In this even more complex definition of a constitution, we can see that a constitution

governs a government and hence the powers of a government is given and set by a

constitution. This is in line with Professor KC Wheare in his definition of a

constitution which states it as:

the whole system of government of a country, the collection of rules

which establish and regulate or govern the government. [1966, p 1]2

The Macmillan Dictionary however sets down a simpler definition of a constitution

as to be:

A set of basic laws or principles for a country that describes the rights and

duties of its citizens and the way in which it is governed3

Hence, a constitution in short is the basic rules of a country (not its laws) and the

main purpose of a constitution will be to govern the governing bodies of a country

1 th
Hilaire Barnett, Constitutional & Administrative 7 Edition, Routledge-Cavendish, Abingdon, 2009, 7.
2
ibid 7.
3
, Constitution- Definition <http://www.macmillandictionary.com/dictionary/british/constitution/>
accessed 11 November 2011.

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and also to set down the rights of its people thereby ensuring stability and order of

the country.

After establishing the definition and purpose of a constitution, the next issue

will be its content. What does a constitution contain and what kind of characteristics

does it have? Referring back to the definitions of a constitution given above, a

constitution will contain the rules regulating the powers of the government and also

the rights of the people. These power regulating rules include the separation of

power and also the different roles taken by all bodies of the government. A classic

example here will be Article 62 in the Malaysian Federal Constitution which states

the rules regarding parliamentary procedure 4 . The rights however include

fundamental liberties and citizenship rights of the people. This can also be seen in

the Malaysian federal Constitution Part III5 which includes Chapter 1- Acquisition of

Citizenship (Article 14-22)6, Chapter 2- Termination of Citizenship (Article 23-28A)7

and Chapter 3- Supplemental (Article 29-31)8. Furthermore, it will also include

procedures to amend the constitution. Lets take the Interim Constitution of South

Sudan 2005 as an example this time. Under Part Fifteen: Interim and Miscellaneous

Provisions9, Article 206(1)10 states clearly that the constitution cannot be amended

unless the proposal is approved by two-thirds of the Southern Sudan Legislative

4 th
Laws of Malaysia- Federal Constitution as to 20 April 2011, International Law Books Services, Malaysia,
2011, 78-79.
5
ibid 30-47.
6
ibid 30-36.
7
ibid 36-45.
8
ibid 45-47.
9 th
The Interim Constitution of Southern Sudan as to 9 January 2005, 85-86.
10
ibid 85.

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Assembly11. Therefore, it can be deduced from this article that it is not easy for a

constitution to be amended. This is mainly because if it could be altered easily, the

constitution would be mere temporary law, not a document of ages12. Other

example of rules stated in a constitution may include territories of the country,

language of the country and also the religion of the country.

Following the above discussion on contents of a constitution, we now bring

ourselves to address the issue of the characteristics of a constitution. In general, I do

believe that if one is to speak of the word constitution, it will be interpreted as to be

a document containing rules governing the country. This is not a wrong

interpretation of the term constitution and in fact almost all countries in this world

have with it these written and codified constitutions (of course they differ from

country to country). Countries that did not adapt this form of constitution are

considered rare and coincidently the United Kingdom (UK) is one of them. Other

such countries include Israel and New Zealand (in fact these are the only countries

known to share this similarity). These countries are said to have unwritten or

uncodified constitutions. Following this, by comparing these two forms of

constitutions, certain characteristics can be identified. A codified constitution is

seen as a higher law in a country and the document itself holds authoritative

properties. This is because it binds all political institutions within the country

(including the legislative). It is also more difficult to be amended let alone abolished.

An uncodified constitution however is not seen as a higher law mainly because it is

11
ibid 85.
12
Mary Frances Berry, Amending the Constitution; How Hard It Is to Change, The New York Times-
Magazine, 13 September 1987, <http://www.nytimes.com/1987/09/13/magazine/amending-the-
constitution-how-hard-it-is-to-change.html?pagewanted=all&src=pm> accessed 16 November 2011.

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not a binding legal document. Furthermore, it consists of rules taken from multiple

sources over a long period of time. In simpler terms, it is a mere practice that has

been the norm of the country and its political institutions. Lastly, with the lack of a

legal document as reference, judges in such countries will not be able to determine

nor will they be able to declare actions made by governmental bodies to be either

constitutional or unconstitutional. Hence, uncodified constitutions are also not

judiciable.13

Addressing the issue given, we must take note that first of all (as stated above)

the constitution of UK is generally uncodified. The question now will be what

problems the government will face if they were to attempt in codifying the

constitution. First and foremost, the most easily distinguishable problem will be to

decide on the scope of the constitution. In other words, it is to decide what should

be stated in the constitution.14 This is mainly because the UK is a country with a long

history of not having a written constitution and hence it will be hard to pinpoint the

exact issues that are to be included in a codified constitution if it were to be made.

To further clarify this statement, one must understand the distinction between a

convention and a political behavior. Over the years, a country without a written

constitution will eventually have its own sets of common practices within its

governmental organs. These practices are hence known as conventions, or as KC

Wheare states it, a rule of behavior accepted as obligatory by those concerned in

13
Michael Winrow, Discuss and Analyze the Arguments For and Against Adopting a Codified Constitution
in the UK, 1 <http://www.peterjepson.com/law/Winrow%20UK-8.pdf> 8 November 2011.
14
V Bagdanor & S Vogenauer, Public Law Spring 2008- Enacting a British Constitution: Some Problems,
Sweet & Maxwell ltd and Contributors, 2008, 40-44.

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the working of the constitution15. For example, the action of a minister in the

parliament introducing a new Bill is not a convention but a political behavior that is

a generalization of the working of a parliament. Hence, this cannot be included into

the constitution. However, it would be helpful to note that the process of passing a

Bill through both houses in the parliament is a convention and should be included.

This is because it is an established norm and not just a mere political behavior.16

Furthermore, the next issue that I will be addressing will be the potential

conflicts between constitutional principles. This is mainly because these principles

are very general in nature and conflicts between them will almost certainly happen.

For example, the doctrine of the Rule of Law as stated by AV Dicey in his 1st

Postulate given below:

no man is punishable or can be lawfully made to suffer in body or goods

except for a distinct breach of law established in the ordinary manner before

the ordinary courts of the land.17

practically means no arbitrary law can be applied on anybody. In other words, it is

designed to deny all rights of the government to make retrospective laws. 18

However, a conflict arises when this is compared to the doctrine of Parliamentary

Sovereignty. This doctrine, defined again by AV Dicey is as follow:

15
KC Wheare, Modern Constitutions, Oxford University Press, London, 1951, 179.
16
V Bagdanor & S Vogenauer, Public Law Spring 2008- Enacting a British Constitution: Some Problems,
Sweet & Maxwell ltd and Contributors, 2008, 46
17 th
Hilaire Barnett, Constitutional & Administrative 7 Edition, Routledge-Cavendish, Abingdon, 2009, 66.
18
ibid 66.

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The principle of parliamentary sovereignty means neither more nor less

than this, namely, that Parliament has, under the English constitution, the

right to make or unmake any law or whatever; and, further, that no person or

body is recognized by the law of England as having a right to override or set

aside the legislation of Parliament.19

The conflict raised above can be observed in the case of Burmah Oil v Lord

Advocate20 where the Parliament introduced a new legislation (the War Damage Act

196521) to nullify the decisions made by the House of Lords and hence forgoing the

supposed compensation.22 This speedily made legislation is retrospective in nature

and is directly in conflict with the 1st Postulate of the Rule of Law as stated by Dicey

above where nobody can be judged under retrospective law. Hence from this simple

yet alarming case, we can see that conflicts between principles in a constitution that

are too general in nature may happen and this therefore is a clear problem that will

be faced and has to be solved if the UK is to attempt in codifying its constitution.

Moving on, the cost required to codify a constitution will also be another

issue troubling the current government. For further illustration on this matter, I

would like to bring in the Zambian estimation of the cost required for a constitution

to be made. It was recently published in the Lusaka Times webpage that the Justice

Minister of Zambia, Sebastian Zulu announced that the cost of drafting the new

19
Carl Gardner, Parliamentary Sovereignty <http://www.insitelawmagazine.com/constitutional2.htm>
accessed 22 November 2011.
20
Burmah Oil Company (Burma Trading) Ltd. v Lord Advocate [1965] AC 75
21
War Damage Act 1965.
22 th
Hilaire Barnett, Constitutional & Administrative 7 Edition, Routledge-Cavendish, Abingdon, 2009, 67.

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Constitution will not exceed K300 billion (300,000,000,000 Zambian Kwacha).23

Though the term will not exceed may seem to mean not so costly, if it were to be

converted into the UK currency, it will actually exceed 38 million. This is quite a

burden to the current government due to the fact that the UK government is facing a

national dept of 966.8 billion as per September 2011 which is equivalent to 62.6

per cent of the GDP (Gross Domestic Product).24 This alarming figure shows that the

UK with its current financial situation is in no state or whatsoever to allocate

enough funds to fund a constitution drafting commission. Such funds will not be

available anytime soon either because the national debt of UK has been forecasted

to rise close to 100 per cent by the year 2015.25 This now brings us to wonder why it

costs so much to make or draft a constitution. Generally, its because not all

individuals possess the expertise to draft such an important document. Besides that,

we must also take into account the amount of research needed to codify the UK

constitution due to the issue of scope that was raised above. All this will take time

and with time money. Furthermore, I do also believe that since the UK is not any

average young nation wishing to start over anew, the amount of funds required to

do research in order to codify its constitution will definitely exceed that of Zambia.

Following the above discussion, the issue of role playing will be the next

problem faced if an attempt to codify the UK constitution is made. In other words,

who will be authoritative and trustworthy enough to be entrusted with this task?
23
, Constitution making process will not cost more than K300 billion- Justice Minister, 17 November
2011, <http://www.lusakatimes.com/2011/11/17/constitution-making-process-cost-k300-billionjustice-
minister/> accessed 27 November 2011.
24
Tejvan Pettinger, UK National Debt, UK Economy, 12 November 2011,
<http://www.economicshelp.org/blog/334/uk-economy/uk-national-debt/> accessed 27 November 2011.
25
ibid

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Here, most would automatically conclude that the Parliament will be the best choice

in hand. This may be due to the perception that the Parliament is a symbol of

democracy. Furthermore the Parliament is also the law making body of the country

and hence holds more authority than other bodies. However it must be made known

that there is always a risk of the Parliament abusing the powers conferred to it

whilst codifying the constitution (if the role was to be given to them). In fact, the UK

Government (to be exact the executives) had just been accused recently to have

abused its powers by cancelling the 2011 Queens speech26. The Queens speech is a

formality where the monarch sets out the outline for the new government to follow

during its time in power. It was reported that the coalition government canceled the

2011 Queens speech with no consultation whatever with the other parties. The

Commons was not invited to give its views27. Furthermore, it was also highlighted

by the shadow leader of the Commons, Rosie Winterton that This executive

decision, made using the Queens prerogative powers, has significant constitutional

implications and is an abuse of power28. Therefore, although this did not happen in

the UK Parliament directly, it could be reasonably inferred that the risk of it

happening is real and apparent. After all, the Parliament is made up of politicians

and it cannot be denied that most, if not all politicians can be said to be politically

motivated.

26
Haroon Siddique, Government accused of abuse of power after cancelling 2011 Queens speech, 13
September 2010, <http://www.guardian.co.uk/politics/2010/sep/13/government-cancels-2011-queens-
speech> accessed 23 November 2011.
27
ibid
28
ibid

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Last but not least, the acceptability of a codified constitution will be

questionable too. The issue I wish to address here is the reaction of the people to the

enactment of a codified constitution. Instinctively we will assume that the people

will be more than glad to have a codified constitution. However, reality may be so

much different from what we presume. This is due to the basic factor of flexibility.

As discussed above, we know that a written constitution is regarded as a higher law

in a country and is not easily amendable. An unwritten constitution does not in

anyway have this privilege but it does have the potential and the ability to grow

with time. This is crucial because nobody in their right mind would want to be

governed by old and rigid laws made in the past.29 Furthermore, we all know most

written constitutions were drawn up and adopted because people wished to make

a fresh start30 following a clear break in the countys political history.31 Since UK

never encountered any of such breaks and operates mainly by democracy, it is

unlikely for the people to accept such a change, as the saying goes, if it aint broke,

dont fix it32. Simply said, since the constitution now is the result of many years of

trials and errors, and given the fact that it operates effectively and efficiently, there

is no need for a change. In fact, the UKs long-period of unbroken democratic rule is

often seen as a strength of the uncodified constitutional system33. It could be

29
Michael Winrow, Discuss and Analyze the Arguments For and Against Adopting a Codified Constitution
in the UK, 2 <http://www.peterjepson.com/law/Winrow%20UK-8.pdf> 8 November 2011.
30 th
Hilaire Barnett, Constitutional & Administrative 7 Edition, Routledge-Cavendish, Abingdon, 2009, 8.
31
ibid 8.
32
Nigel Morris, The Big Question: Why doesnt the UK have a written constitution, and does it matter?,
The Independent, 14 February 2008, <http://www.independent.co.uk/news/uk/politics/the-big-question-
why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html> accessed 27 November
2011.
33
Michael Winrow, Discuss and Analyze the Arguments For and Against Adopting a Codified Constitution
in the UK, 2 <http://www.peterjepson.com/law/Winrow%20UK-8.pdf> 8 November 2011.

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deduced that the people might be afraid that such a change may create inefficiency

and reduce the effectiveness of the old and wise constitution that they currently

have. Such a fear is apparent because again, a written constitution is rigid and thus

not flexible enough to grow as compatibly as an uncodified constitution.

Having discussed the issue thus far, I do believe that it may be quite

persuasive to many that the UK constitution should remain uncodified given all the

problems that may be faced if it were to do so. However, this may not be the case. In

reality, a written constitution is very much required. Referring back to the first

paragraph, we must note that the main purpose of a constitution is to govern the

government. Hence, how can we determine the scope of the governments power

without such a document? In other words, without a written constitution the

government will basically have absolute power and as the saying goes, absolute

power corrupts absolutely. Therefore, a codified constitution is needed to set down

clear and defined rules to prevent such abuse of power from happening.34 This

would eventually be beneficial to the people because their rights will be more

clearly projected and hence protecting them against the state.35 This is due to the

fact that the current constitution is often said to be unclear and very much

confusing.36 Furthermore, the highly criticized case of Burmah Oil v Lord Advocate37

34
ibid 1.
35
Nigel Morris, The Big Question: Why doesnt the UK have a written constitution, and does it matter?,
The Independent, 14 February 2008, <http://www.independent.co.uk/news/uk/politics/the-big-question-
why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html> accessed 27 November
2011.
36
Simon Davidian, Discuss and analyse the arguments for and against adopting a codified constitution in
the UK, <http://www.peterjepson.com/law/UK-8%20Davidian.pdf> accessed 27 November 2011.
37
Burmah Oil Company (Burma Trading) Ltd. v Lord advocate [1965] AC 75

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discussed above would be less likely to happen again should a codified constitution

be enacted due to the same fact of control over the governments legislative power.

Having said that, we should also remember all the problems discussed above

with regards to the enactment of a codified constitution. Here, I would like to submit

some suggested solutions that I think would be quite sufficient in overcoming those

problems. First, referring to the issue of scope, it would seem that if one were to

attempt in codifying the UK constitution, it would result in a logistical nightmare.38

Simply said, the amount of materials needed and required to be filtered through will

be so much that such an attempt would be unpractical. However, we must always

bear in mind that the UK constitution is in a way written but not codified. This is due

to the fact that although UK had nothing approaching a single, codified constitution,

it did for a long time possess a broad cult of constitutional writing39. Such

documents include the Magna Carta40, the Bill of Rights41 and also the Human Rights

Act42. They all contain constitutional principles that should be included in a codified

constitution. Furthermore, the UK leaders have always been hyperactive in drafting

constitutions for other nations which includes postwar Germany, Malaysia and

38
Nigel Morris, The Big Question: Why doesnt the UK have a written constitution, and does it matter?,
The Independent, 14 February 2008, <http://www.independent.co.uk/news/uk/politics/the-big-question-
why-doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html> accessed 27 November
2011.
39
Linda Colley, Why Britain needs a written constitution, Guardian News and Media Limited, 4
November 2011, <http://www.guardian.co.uk/books/2011/nov/04/why-britain-needs-written-
constitution> accessed 28 November 2011.
40
Magna Carta (1215).
41
The Bill of Rights (1688).
42
Human Rights Act 1998.

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many more.43 Hence, it would be unrealistic to say that the UK government has no

experience whatsoever to draft constitutions. In fact, they are already experts in

constitutional drafting and given the existing written documents it would be fairly

easy for them to compile and codify the constitution. However, it would still take

time for the filtering process to complete since it would be safe to say (given the fact

that the Magna Carta was written in 1215 and the Bill of Rights 1688) that not all

principles and rules stated in these documents are applicable in the modern society.

Yet, it would definitely cost less time if compared to making a codified constitution

without any such documents as guidance. Following this, less time equals less cost

which would lessen the burden of the government. However I do doubt that such a

cut would be significant with regards to the current and future financial situation of

the UK which was discussed before. It may not be sufficient enough and funding will

still be a problem plaguing the current government if it were to attempt in codifying

the constitution.

So far, weve understood the types, contents and purpose of a constitution.

Weve discussed the problems that may be faced by the current government which

includes scope, conflict, role, cost and acceptability if an attempt to codify the

constitution was made. Following this, some benefits and solutions in overcoming

the problems had also been discussed. Therefore, this brings us back to the basic

question regarding the UK constitution. Should we or should we not codify it?

Regarding this, I do believe that a codified constitution may be better due to the fact

43
Linda Colley, Why Britain needs a written constitution, Guardian News and Media Limited, 4
November 2011, < http://www.guardian.co.uk/books/2011/nov/04/why-britain-needs-written-
constitution> accessed 28 November 2011.

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that it provides clear and distinct rules and guidelines to be followed by the

government. It does also provide a platform for frequent checks to be performed on

the governmental bodies especially the legislature. In theory, this promotes

transparency and may also reduce the risk of abusive use of power. A codified

constitution will also aid in protecting the rights of the people because their rights

will surely be included in such a document. However, I do agree to the fact that a

codified constitution is also known as a toothless tiger. This statement is somehow

ironic due to the fact that a breach of such higher law will only lead to criticism and

not legal consequences. The only viable punishment will be through elections and

that too will be uncertain.44 Lastly I would like to conclude that perhaps it is time for

the UK government to address this issue seriously and it might be time to decide the

fate of the current constitution. Should it be codified or should it remain uncodified?

However, I submit that it would be unwise to make any changes now or anytime

sooner due to the financial issues brought up above. These crisis issues should be

dealt with first before such a widely debatable and arbitrary issue is to be decided.

(3065 words)

44
Phil Duffy & Christine Kantrowitz, Constitutional Conduct Broad Proposed, 1
<http://www.westchesterteaparty.com/uploads/Constitutional_Conduct_Board_Proposed.pdf> accessed
28 November 2011.

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Bibliography
Books
1. Hilaire Barnett, Constitutional & Administrative 7th Edition, Routledge-Cavendish,
Abingdon, 2009

2. Laws of Malaysia- Federal Constitution as to 20th April 2011, International Law

Books Services, Malaysia, 2011

3. The Interim Constitution of Southern Sudan as to 9th January 2005

Journal Articles
1. V Bagdanor & S Vogenauer, Public Law Spring 2008- Enacting a British
Constitution: Some Problems, Sweet & Maxwell ltd and Contributors, 2008

2. Michael Winrow, Discuss and Analyze the Arguments For and Against Adopting a
Codified Constitution in the UK

3. Simon Davidian, Discuss and analyse the arguments for and against adopting a
codified constitution in the UK

4. Phil Duffy & Christine Kantrowitz, Constitutional Conduct Broad Proposed

Electronic Sources
1. , Constitution- Definition
<http://www.macmillandictionary.com/dictionary/british/constitution/>
accessed 11 November 2011.

2. Mary Frances Berry, Amending the Constitution; How Hard It Is to Change, The
New York Times- Magazine, 13 September 1987,
<http://www.nytimes.com/1987/09/13/magazine/amending-the-constitution-
how-hard-it-is-to-change.html?pagewanted=all&src=pm> accessed 16
November 2011.

3. Carl Gardner, Parliamentary Sovereignty

<http://www.insitelawmagazine.com/constitutional2.htm> accessed 22
November 2011.

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4. , Constitution making process will not cost more than K300 billion- Justice
Minister, 17 November 2011,
<http://www.lusakatimes.com/2011/11/17/constitution-making-process-cost-
k300-billionjustice-minister/> accessed 27 November 2011.

5. Tejvan Pettinger, UK National Debt, UK Economy, 12 November 2011,

<http://www.economicshelp.org/blog/334/uk-economy/uk-national-debt/>
accessed 27 November 2011.

6. Haroon Siddique, Government accused of abuse of power after cancelling 2011

Queens speech, 13 September 2010,
<http://www.guardian.co.uk/politics/2010/sep/13/government-cancels-2011-
queens-speech> accessed 23 November 2011.

7. Nigel Morris, The Big Question: Why doesnt the UK have a written constitution,
and does it matter?, The Independent, 14 February 2008,
<http://www.independent.co.uk/news/uk/politics/the-big-question-why-
doesnt-the-uk-have-a-written-constitution-and-does-it-matter-781975.html>
accessed 27 November 2011.

8. Linda Colley, Why Britain needs a written constitution, Guardian News and
Media Limited, 4 November 2011,
<http://www.guardian.co.uk/books/2011/nov/04/why-britain-needs-written-
constitution> accessed 28 November 2011.

Table of statutes
1. War Damage Act 1965
2. Magna Carta (1215)
3. The Bill of Rights (1688)
4. Human Rights Act 1998

Table of cases
1. Burmah Oil Company (Burma Trading) Ltd. v Lord Advocate [1965] AC 75

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